Immediately before the Restoration, commissions were issued for all the ‘counties, cities, towns and liberties within England and Wales as they were approved of and allowed by the late Parliament after the readmission of the secluded Members’1 Very few men whose names had been on the previous commission were left off, but a large number were appointed, many of whom must have been known to have favoured a restoration. Following the Restoration, as might be expected, new commissions were issued in July with the result that the county bench was in effect reconstructed. Of the 72 justices left off the new commissions because of political unreliability, 15 had been appointed in March. These were men who were to end up as opponents of the Court, such as Samuel Ashe, Sir John Gell, Edward Hales I, Richard Slater and Edward Vaughan I. As can be seen, the largest number of appointments or restorations to the bench during the period occurred in July 1660, reflecting the natural desire of the restored monarchy to obtain reliable magistrates. A handful of MPs who apparently had been overlooked were appointed in August and September. In 1670 a minor purge was made when 47 Members were left off the commissions, doubtless because of their opposition to the second Conventicles Act. Some left the bench voluntarily. In May a newswriter reported that ‘many justices put themselves out of the commission of the peace and others are put out. Everyone that desires it may be put out.’2 Included were such men as Sir Charles Wolseley, the author of two pamphlets on liberty of conscience; Edward Boscawen, a Presbyterian; Sir Walter St. John, restored to the bench in 1675, and Walter Bockland a crypto-Catholic.

In the spring of 1679, after the King had remodelled the Privy Council by admitting some of the opposition leaders, notably the Earl of Shaftesbury, an attempt was made to regulate the county benches in favour of the country party. A few MPs of that persuasion were restored or appointed, but on the whole it failed, largely because the King refused to accept the recommendations of the opposition magnates.3 The purge engineered by the Court was much more successful. In the wake of the Exclusion crisis 171 MPs were left off the commission between 1679 and 1682, the peak year being 1680. The regulation of the county benches was supervised by a committee consisting of the chancellor (Heneage Finch), the lord president of the Council (the Earl of Radnor) and the two secretaries of state (the Earl of Sunderland and the Hon. Henry Coventry), acting on recommendations from the localities. The purge was not complete; not every exclusionist was dismissed, and a handful of those who had been listed as voting against the bill were left off. These, however, were men like the Hon. Henry Capel who had vigorously opposed the Court on all other issues, or the victim of a local rival, such as Nicholas Pedley, or Walter Kendall, who was probably dismissed for procuring the election of his exclusionist brother-in-law. ‘Nevertheless, the view that the county benches were controlled by Tory justices by 1685 is substantially correct.’4

New commissions had to be issued at the accession of James II, but of the 11 MPs known to have been left off, only four seem to have been dismissed because of their politics: Thomas Foley II (Worcestershire), Edward Harby (Northamptonshire), Sir Francis Holles (Dorset), and Robert Leighton (Shropshire). In October 1686, however, a committee of the Privy Council was appointed to review the magistracy. In December lists were entered in the Council register containing the names of those ‘to be put out’ and those ‘to be put in’. The names of 60 men who had been, were, or were to be MPs were on the first list: 39 being those of Members then sitting in James II’s Parliament. Eleven of those dismissed were exclusionists who had escaped the earlier purges. In addition to those on the Council list, a further 17 were put off the commissions, presumably because some local Tory magnate had informed the chancellor of their unreliability after the list had been compiled. Five Members who had voted against the exclusion bill were left off the commissions: the Hon. Thomas Bulkeley, Sir John Chicheley, Sir Thomas Exton, Sir Roger Norwich, and Joseph Tredenham. But Danby listed all but Exton as among the opposition to James II; it is not surprising to find 15 other purged MPs on the lists. On the other side of the coin, 58 Members were appointed, of whom 42 had been recommended by the Council. Ten of these were already justices, and were added to other benches, five of them in Middlesex and Westminster. A major purpose of this regulation was to add Roman Catholics to the magistracy, and five of the MPs proposed were of that faith: Edward Hales II, Lord Castlemaine (Roger Palmer), Edward Sackville, Sir Thomas Strickland and Sir Philip Tyrwhitt. Three more: William Barlow, Humphrey Borlase and the Hon. Ralph Widdrington may have been Roman Catholics at this time. No less than 17 MPs who were army officers were ordered to be put on the bench by the Council.

When James II realized that he could not expect the Anglican though loyal Commons to repeal the Penal Laws and Test Act, he dissolved Parliament on 2 July 1687, and made preparations to obtain a more amenable body. The lord lieutenant of each county was ordered to ask the justices and deputy lieutenants the following questions:

1. If in case he be chosen knight of the shire or burgess of a town, when the King shall think fit to call a Parliament, whether he will be for taking off the Penal Laws and Tests.

2. Whether he will assist and contribute to the election of such Members as shall be for taking off the Penal Laws and Tests.

3. Whether he can support the King’s Declaration for liberty of conscience by living friendly with those of all persuasions, as subjects of the same prince, and good Christians ought to do.5

The result was a massive change in the county magistracy. It was, as Dr Glassey has pointed out, more than a purge.

One reason for the extent of the changes was that the Regulators were not revising the existing commissions of the peace. They were constructing completely new lists on the basis of the answers to the three questions and the response of the lords lieutenants to the order to recommend Catholics and dissenters.6

Of the 287 MPs omitted from the commissions of the peace in 1688, 201 are known to have returned negative or evasive answers.7 It is significant that the number of MPs on the bench after the regulation (343) was much smaller than at any time since March 1660. Of those retained, 191 have been classed as Tories and only 39 as Whigs, which is not surprising when we consider the previous purges. But it is worth noting that of those appointed for the first time or restored to the bench, 88 were Whigs and only 25 were Tories. James hoped that the desire of most Whigs for some toleration of Protestant nonconformists might be extended to include Roman Catholics, and consequently many exclusionists were put on the bench and a good many of them collaborated with the Government. These included men like Thomas Foley II, William Coward, Nicholas Gould and William Trenchard. Perhaps the most prominent (and surprising) Whig to be restored was the bigoted anti-Catholic William Sacheverell, the paladin of the Opposition for many years, and the first exclusionist. Not all Whigs put on the bench, however, were willing to collaborate. Richard Hampden, restored in July, was one of the chief contacts of William of Orange, and urged speedy action against James. Sir Scrope Howe, restored in February, who had called James, before his accession, a ‘Popish dog’, was in contact with Dykvelt. Edward Harley was restored to the Herefordshire bench in July but refused, for the second time, a seat on the Privy Council. Lord Bath thought that Hugh Boscawen should be ‘treated with’ before the abortive elections of 1688, but though he was restored to the Cornish bench he never collaborated. One result of the regulation was the appointment of dissenters, often men of low degree, who were keenly resented by the natural Anglican leaders of their localities. This objection could not have been directed against those MPs put on the commission who were or had been non-conformists. Men such as Thomas Bampfield, the two Foleys (Robert and Thomas II) and John White may have been politically objectionable but were socially quite acceptable.

When it became evident to the Government in September 1688 that William’s invasion was imminent, there was a further regulation of the magistracy. In October and November 209 MPs who had been left off the commissions earlier in the year were restored. Most of them, however, refused to serve on the bench with Catholics and dissenters. The number of those restored would have been greater were it not for the fact that because of administrative muddles in the autumn no commissions were sealed for 18 counties, and, in fact, 59 Members dismissed in 1688 were not restored until the next year.

After the Revolution it was only to be expected that the county benches would be regulated. The process was slow, but by the end of 1689 all but Flintshire and Merioneth had received commissions. The number of MPs put on the bench for the first time (93) was very high. Of these, 68 were Whigs or court Tories, and only 25 could be classed as true Tories. This imbalance, however, was not the result of pressure from the Goverment. ‘The appointment of justices of the peace was carried on with less central control in the months after the Revolution than ever before ... Consequently the local magnates who drew up the lists had the field to themselves.’8 It is noteworthy that the number of those appointed or restored was higher than at any time since July 1660. Of the 92 MPs who were left off the commissions in 1689, a few might be regarded as the result of natural wastage, such as Henry Henley who was 77, Thomas Moore (71), or Cresheld Draper, who was of no great age but was in serious financial difficulties, but 61 were non-jurors or Jacobites.

APPOINTMENTS, RETENTIONS AND DISMISSALS OF MPS ON THE COMMISSIONS OF THE PEACE

Ref Volumes: 1660-1690

Author: Basil Duke Henning

End Notes

• 1. A Perfect List of all Such Persons ... [as] are now Confirmed... to be Justices of the Peace ...
• 2. Add. 36916 f. 179.
• 3. L.K.J. Glassey, Politics and the Appointment of Justices of the Peace, 42-43.
• 4. Ibid. 55.
• 5. Ibid. 78-79.
• 6. Ibid. 84.
• 7. The returns for nine counties have not survived. It is possible, however, to deduce the answers from the recommendations of the regulators for the appointment of deputy lieutenants and justices. These have not been included in the 201.
• 8. Glassey, 101n, 103, 105.